4412 Moratorium for HB 687Ordinance No. 4412
An ordinance of the City of Sanford, Florida establishing and
imposing a temporary moratorium within the City of Sanford on the
effects of Committee Substitute for Committee Substitute for House
Bill 687 passed by the Florida Legislature during the recently ended
2017 Legislative Session; prohibiting any and all approvals during
the moratorium period for any right-of-way located within the City of
Sanford in order to allow an opportunity for the City to develop an
ordinance, as appropriate, relating to the impacts of the legislation;
providing for legislative and administrative findings; providing for
geographic area encompassed by the moratorium; providing for
implementing administrative actions; providing for a savings
provision; providing for non -codification as well as the correction of
scrivener's errors; providing for conflicts; providing for severability
and providing for an effective date.
Whereas, Committee Substitute for Committee Substitute for House Bill 687
(CS/CS/HB 687) passed the Florida House of Representatives on April 28, 2017 and
the legislation was subsequently passed by the Florida Senate on the same day; and
Whereas, the bill creates the "Advanced Wireless Infrastructure Deployment
Act" (which legislation has also been referred to by local government advocates as the
"Wireless Giveaway"); and
Whereas, the legislation establishes a process by which wireless providers
may place certain "small wireless facilities" on, under, within, or adjacent to certain utility
poles or wireless support structures within public rights-of-way that are under the
jurisdiction and control of an "authority" (i.e., a county or municipality); and
Whereas, thus, the bill provides that the City may not prohibit, regulate, or
charge for the collocation of small wireless facilities in the public rights-of-way, except
as specified in the legislation; and
Whereas, on May 22, 2017 the City Commission adopted Resolution Number
2671 urging urges Governor Rick Scott to veto the legislation; and.
Whereas, notwithstanding the City Commission's request, on June 23, 2017,
Governor Scott approved CS/CS/HB 687 over the objections expressed not only by the
City Commission, but by numerous other local governments and advocacy groups; and
Whereas, the legislation has been referred to as the "wireless giveaway" and
became effective on July 1, 2017 with the initial codification as Chapter 2017-136, Laws
of Florida; and
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Whereas, Chapter 2017-136, Laws of Florida, became effective on July 1,
2017; and
Whereas, City staff has not had adequate time to evaluate the impacts or
address local issues that are presented by the legislation; and
Whereas, this Ordinance is enacted pursuant to the home rule powers of the
City of Sanford as set forth at Article VIII, Section 2, of the Constitution of the State of
Florida; Chapter 166, Florida Statutes, and other applicable controlling law.
Now, therefore, Be it enacted by the People of the City of Sanford:
Section 1. Legislative And Administrative Findings.
(a). The City of Sanford has complied with all requirements and procedures of
Florida law in processing and advertising this Ordinance.
(b). The foregoing recitals (whereas clauses) are hereby ratified, affirmed and
confirmed as being true and correct and are hereby made a part of this Ordinance.
Section 2. Study And Review Process.
(a). During the temporary moratorium period designated in Section 3 of this
Ordinance, the City staff, are hereby directed to study controlling State law regarding
Chapter 2017-136, Laws of Florida.
(b). The essential purpose of such a review and study by the City staff is to
develop and propose to the City Commission amendments to the City's codes and
ordinances as may be necessary and appropriate to conceptualized a framework of
authorized regulation and fee structure as to implementing the legislation.
Section 3. Imposition Of Temporary Moratorium.
(a). All activity relating to the acceptance, review and action upon matters
regulated by the provisions of Chapter 2017-136, Laws of Florida, is temporarily
suspended in order for the City to have the time and opportunity necessary to a
framework of authorized regulation and fee structure as to implementing the legislation.
(b). Based upon the legislative findings, purpose, and intent set forth herein,
there is hereby imposed a temporary moratorium on all matters regulated by the
provisions of Chapter 2017-136, Laws of Florida.
(c). During the time that the moratorium imposed by this Ordinance is in effect,
no applications will be accepted with regard to the matters regulated by the provisions
of Chapter 2017-136, Laws of Florida, that pertain to activities proposed to occur within
the City Limits of the City.
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Section 4. Geographic Area Covered.
This Ordinance applies to all areas within the City Limits of the City of Sanford.
Section 5. Duration Of Moratorium.
(a). The temporary moratorium established by this Ordinance has taken effect
upon first reading of this Ordinance (under the zoning in progress doctrine) and shall
terminate on September 30, 2017.
(b). No applications for approvals subject to the moratorium will be accepted
by the City until the moratorium has expired.
(c). The temporary moratorium set forth in this Ordinance shall expire prior to
the termination date set forth herein if the City Commission enacts an ordinance
addressing the matters regulated by the provisions of Chapter 2017-136, Laws of
Florida.
Section 6. Implementing Administrative Actions.
'(a). The City Manager is hereby authorized and directed to implement the
provisions of this Ordinance and with regard to the implementation of the matters
regulated by the provisions of Chapter 2017-136, Laws of Florida, by the promulgation
of rules and the development and usage of forms and processes all as may be deemed
necessary or appropriate by the City Manager.
(b). The City Manager and City Attorney are also hereby authorized and
directed to generally implement the provisions of this Ordinance and to take any and all
necessary administrative actions to bring into effect the provisions of this Ordinance in
accordance with controlling law as such officers may deem appropriate in their
respective roles and functions under the City of Sanford City Charter.
Section 7. Savings.
The prior actions of the City of Sanford in terms of the matters relating to the
regulation of rights-of-way, as well as any and all related matters, are hereby ratified
and affirmed.
Section 8. Conflicts.
All ordinances or part of ordinances in conflict with this Ordinance are hereby
repealed.
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Section 9. Severability.
If any section, sentence, phrase, word, or portion of this Ordinance is determined
to be invalid, unlawful or unconstitutional, said determination shall not be held to
invalidate or impair the validity, force or effect of any other section, sentence, phrase,
word, or portion of this Ordinance not otherwise to be invalid, unlawful, or
unconstitutional.
Section 10. Non -Codification.
(a). The provisions of this Ordinance shall not be included and incorporated
within the Land Development Regulations/Land Development Code of the City of
Sanford, Florida, and neither the Land Development Code nor the Code of Ordinances
of the City of Sanford shall be revised to accommodate such inclusion.
(b). Typographical errors and other matters of a similar nature that do not
affect the intent of this Ordinance, as determined by the City Clerk and City Attorney,
may be corrected with the endorsement of the City Manager, or designee, without the
need for a public hearing.
Section 11. Effective Date.
This Ordinance shall take effect immediately upon passage and adoption.
Passed and adopted this 24th day of July, 2017.
Attest.
Cynthia Porter, City Clerk
Approved as to form and
Legality:
William L. Colbert, Esquire
City Attorney
411'�ge
City Commission of the City of
Sanford, Florida, Seminole County,
Florida.
WS _ RM Xx
Item No. `7. A
CITY COMMISSION MEMORANDUM 17-230
JULY 24, 2017 AGENDA
TO: Honorable Mayor and Members of the City Commission
PREPARED BY: Cynthia Porter, City Clerk
Russell Gibson, Planning an evelopmewl r ices Director
SUBMITTED BY: Norton N. Bonaparte Jr., City Manager/'
SUBJECT: Second Reading of Ordinance Number 4 2; Temporary Moratorium;
Wireless Facilities in Public Rights -of- ay; Committee Substitute for
Committee Substitute for House Bill 117; 7; Chapter 2017-136, Laws of
Florida.
STRATEGIC PRIORITIES:
❑ Unify Downtown & the Waterfront
❑ Promote the City's Distinct Culture
® Update Regulatory Framework
❑ Redevelop and Revitalize Disadvantaged Communities
SYNOPSIS:
Ordinance 4412, to place a temporary (90 day) moratorium on the acceptance of any applications
for the placement of wireless communication facilities and telecommunication towers and
antennas, nor accept any new applications thereof, within the City's rights-of-way, is being
submitted for third reading and adoption.
FISCAL/STAFFING STATEMENT:
The new legislation restricts the amount the City can charge for permit fees and also restricts the
rate to collocate a small wireless facility on government utility poles to not more than $150 per
pole annually.
BACKGROUND:
The issue of cell towers in the public right-of-way has been a growing issue for counties and cities
not only in Florida but also the rest of the Country. There are many issues surrounding this matter
and municipalities need time to address many of these concerns which include federal and state
law regulations and moratoria for cell towers and facilities in a local government's right-of-way.
However, recent legislative action by the Florida Legislature has much complicated the ability of
local governments to address local impacts relative to wireless facilities. Committee Substitute for
Committee Substitute for House Bill 687 (CS/CS/HB 687) passed the Florida House of
Representatives on April 28, 2017, and the legislation was subsequently passed by the Florida
Senate on the same day. On May 22, 2017, the City Commission adopted Resolution Number 2671
urging Governor Rick Scott to veto the legislation.
Notwithstanding the City's request, on June 23, 2017, Governor Scott approved CS/CS/HB 687
over the objections expressed not only by the City Commission, but by numerous other local
governments and advocacy groups.
The legislation has been referred to as the "wireless giveaway" and became effective on July 1,
2017. The legislation has been initially codified as Chapter 2017-136, Laws of Florida. The
legislation is assigned the common name of the "Advanced Wireless Infrastructure Deployment
Act" by the Florida Legislature, but will be referred to as the "Act" in this memorandum,
The Act substantially amends Section 337.401, Florida Statutes, relating to the use of public
(municipal or county) right-of-way, and structures located within the right-of-way, for broadband
or wireless facility infrastructure. With various limited exceptions, the Act provides for the
installation of small wireless facilities on government-owned poles and other poles and structures
located in the right-of-way, installation of ground -mounted equipment in the right-of-way,
installation of new poles in the right-of-way, and installation of micro wireless facilities.
The Act provides a specified process a government must follow to accept applications for permits
and to process and issue permits. Generally, a government must either approve or deny a
completed application within 60 days after receipt of the application. The Act sets forth various
standards by which an application may be denied. Installation is subject to "applicable codes,"
which includes "local codes or ordinances adopted to implement" the Act and "objective design
standards adopted by ordinance . . . to meet reasonable location context, color, stealth, and
concealment requirements." The Act, as noted above, restricts the amount that may be charged for
permit fees, and also restricts the rate to install a small wireless facility on a government utility
pole to not exceed $150 per pole annually.
The Act also provides that local governments shall offer rates, fees and other terms that comply
with the Act by January 1, 2018, or 3 months after receiving a request to locate its first small
wireless facility on a utility pole owned or controlled by (the local government) ... through
ordinance or otherwise." It is expected that many permit applications will be submitted to local
governments once the Act becomes effective on July 1, 2017.
The proposed temporary moratorium will temporarily suspend all permitting activities relating to
the installation of wireless devices and infrastructure on utility public poles. The moratorium will
provide adequate time for City staff to analyze and propose the required design standards to meet
reasonable location context, color, stealth, and concealment requirements. It will also allow the
City staff the opportunity to propose the approval process and procedures, as may be necessary and
appropriate, to amend the City's Code of Ordinances or the City's Land Development
RegulationslLand Development Code.
The temporary moratorium established by Ordinance Number 4412 shall take effect immediately
upon the date of City Commission enactment and shall terminate on September 30, 2017. No
applications for approvals subject to the moratorium will be accepted by the City until the
moratorium has expired. The temporary moratorium set forth in this Ordinance shall expire prior to
the termination date set forth herein if the City Commission enacts an ordinance addressing the
matters regulated by the provisions of the Act. The zoning in progress doctrine has taken effect
upon the first reading of Ordinance Number 4412 during the City Commission meeting on June
26, 2017. Thus, the effects of the moratorium are now in place.
The City Attorney has assisted in the preparation of this matter and drafted the proposed
Ordinance. Legal counsel from the Florida League of Cities has noted that the industry will
strongly argue that a moratorium is not allowed, but legal arguments to the contrary are available
and, in any event, such an assertion will be addressed if made.
City staff recommends enactment of Ordinance Number 4412. The City Commission conducted
the first reading of Ordinance Number 4412 on June 26, 2017. The Planning and Zoning
Commission will conduct a public hearing on Ordinance Number 4412 and thereat recommend
approval. The City Commission will conduct a third reading and the enactment public hearing on
July 26, 2017. The City has complied with all requirements and procedures of Florida law in
processing and advertising this Ordinance.
Again, this is the second reading and the first public hearing on Ordinance Number 4412. Another
public hearing will be held as to the Ordinance. However, the zoning in progress doctrine has
taken effect upon the first reading of Ordinance Number 4412 during the City Commission
meeting on June 26, 2017. Thus, the effects of the moratorium are now in place and the City staff
will not process applications tendered under the Act until the moratorium expires or in the event
that the City Commission were to not approve the proposed Ordinance.
During the temporary moratorium period, the City staff will be allotted time to study controlling
State law and the Act and develop and propose to the City Commission amendments to the City's
codes and ordinances which may be necessary and appropriate to conceptualize a framework under
the legislatively authorized regulation and fee structure with regard to implementing the Act.
The City Commission approved the first reading of Ordinance No. 4412 on June 26, 2017, and the
second reading on July 10, 2017.
The City Clerk published notice of the public hearings in the Sanford Herald on July 9, 2017.
LEGAL REVIEW:
The City Attorney prepared the moratorium ordinance and has otherwise assisted in this matter and
will assist as potential future ordinances are developed, processed toward consideration by the City
Commission and implemented.
RECOMMENDATION:
Staff recommends that the City Commission approve the third reading of Ordinance Number 4412,
to place a temporary (90 day) moratorium on the acceptance of any applications for the placement
of wireless communication facilities and telecommunication towers and antennas, nor accept any
new applications thereof, within the City's rights-of-way, in order to allow staff time to undertake
a thorough analysis of the City's current regulations, State and Federal laws and to carefully
review, consider, and propose for enactment and implementation, reasonable non-discriminatory
rules and regulations regarding the same.
SUGGESTED MOTION:
"I move to adopt Ordinance Number 4412."
Attachments: Ordinance No. 4412
Resolution No. 2671